How Do We Solve A Problem Like Probation?

If the new justice minister had been following the debates across the justice sector before the election they’d be expecting to hear unions talking about an operational crisis in prisons; all stakeholders talking about financial difficulties undermining the CRC contracts; and calls from across the sector to improve access to justice after legal aid cuts.

They may be more surprised to hear Napo argue that the part-nationalisation of probation, the accidental side-effect of TR, has proved calamitous and needs to be unpicked and addressed as urgently as any of the other justice fires.

Unions will often be heard highlighting privatisation failures and calling for re-nationalisation but in probation at least, it is a harsh but inconvenient truth that the part-nationalisation of the probation service has been a disaster, with the NPS at least as unstable as the CRCs.

The scale of the problem is ever more obvious and ever more dangerous. During the election period alone, Napo has been seeking to resolve problems for hundreds of new PSOs and recent PQUIP starters who simply haven’t been paid for months. If you can’t pay your staff you cannot meet any credible description of a functioning employer.

Additionally, the Napo inbox is swamped with PAYE and pension problems. The pay system is recognised by all sides as being broken and is disrupting attempts to establish HMPPS and resolve the contractual funding problems with CRCs.

Staff appraisal, where it still functions, is demotivating and having a negative impact on performance. The move to HMPPS is beset with challenges however well intentioned, not least because it is being rushed like TR with little consideration seemingly given to the professional or financial structures that need to underpin any new models. Further, with so much political focus on HMPPS, the community aspects of the NPS look isolated and morale is further undermined.

The new justice minister must therefore accept the National Probation Service isn’t working – it may be appearing more stable than CRCs in most areas but that doesn’t mean it is performing strongly or meeting the national needs. If the HMI for probation were to announce a total CRC contract failure then the NPS could not safely absorb a failing CRC area, even temporarily.

CRC contracts are constructed around the premise that Government didn’t know how local support for low and medium risk clients was to be best delivered. The CRCs are essentially commissioning bodies or middle-men, who decide and then either deliver or buy-in what is needed. How much they can charge for this brokerage dictates if they make a profit. Now the Probation Services Review suggests contracts with the MoJ will become increasingly prescriptive. The state pays for the Commissioner but will be directing what has to be commissioned and fixing the price at the centre – potentially making the commissioning process redundant and certainly making it look inefficient.

Further, innovation has, as we and almost all experts predicted, also been driven out by TR’s financial risks and pressures. Under the old pre-TR model, Trusts often commissioned pilots from small local providers, often charities and not-for-profit organisations. These providers were forced out of the field by the big profit hungry CRC corporates. The need for the CRCs to get a cut made the margins for innovation too tight and the risk involved in any experiment to commercially challenging (especially when everything else wasn’t coming through).

A different Commissioning model could re-open the market place and allow charities, mutual and other providers that Trusts were increasingly working in partnership with, to re-engage. If covered by national rehabilitation professional standards this could also, in the long run, be more positive for members.

So what are the alternatives?

CRCs can’t be made to work – but we also know that trying to take everything back in to the centre and run everything from Petty France has no credibility either. Ministers could go on trying to ignore the problem, keep throwing money at the CRCs and battling on as no obvious easy solution is at hand. But ministers will also know that the longer this goes on, the greater the risk of serious further systems failures; SFO’s; probation distracting from solving the already critical prisons crisis; and these ministers being blamed.

Napo’s bet is that they’ll want to find an alternative – and a further election makes it easier to move on having put emotionally more distance between TR and the new Government (especially in a hung parliament where a minority Tory administration can say TR was part of the opposition’s fault as well as Grayling’s).

There would seem to be three possible options – none of which is perfect but all of which seem worthy of exploring and testing seriously and all of which return all parts of provision to locally accountable, publically funded authorities.

The Mayoral Model – where a regional mayor takes over commissioning and local monitoring of service delivery. We know from our own discussions that this has some interest in London. Research published by Unions21 into health and social care partnerships in Greater Manchester suggest that scope and interest across the North West is also likely. Regional Mayors also now exist in the Midlands, Bristol and the South-West and parts of the North East. The Welsh Assembly could play a similar role. A major problem is they don’t exist across the country and most are still establishing themselves as institutions with stakeholders and the public.

Police and Crime Commissioners take over running contracts and commissioning – This has known interest in several areas, including rural areas where profit is difficult and CRCs especially vulnerable to failure. However, PCCs have no political credibility with the public as yet and little visibility. Nor do they have any known capacity for running anything this complicated. There are also too many of them. For example, in the Kent Surrey and Sussex CRC area, which of the PCCs would lead. PCCs also overlap NPS regions.

Local Authorities could take on the responsibility for probation, as they do in Scotland – However, here again there are problems – local authorities are struggling financially; have boundary issues like PCCs and we’ve not identified any existing appetite. Evidence from social services would also suggest that inconsistent provision would make this a risky offload for any minister looking to devolve risk and blame.

So none of the obvious options are fully formed. However, this is not a reason to dismiss them. The scale of the problem dictates minister can’t hide from it and the need to find a solution. Napo is committed to exploring these ideas and would like to think, in the new political environment the MOJ may break the habit of a lifetime and consider genuine pilots to test if and how these models could work.

It is also possible for this to be the start of bringing one probation service back together. Community delivery, commissioned by and accountable to locally elected bodies needn’t be split on arbitrary assessments of risk and the part-nationalisation of probation could begin to be unpicked. Imagine if after the next child abuse scandal a government suggested most child-protection and social services should be nationalised the political outcry would be deafening yet that is the model Grayling adopted to facilitate the failing CRC idea.

Whilst the hung parliament helps facilitate a new national conversation about a stronger and more stable model for probation we can also lay some strong foundations for whatever this eventually looks like by addressing the probation pay system failure and introducing professional structures and pathways around a new license to practice – two big ideas Napo has been leading on which will be huge victories for us and help turn the tide.